To be found guilty, the prosecution must prove each of the following ‘elements’ beyond reasonable doubt:

The defendant assaulted the complainant

In the context of the section, an assault is the deliberate and unlawful touching of another person. The slightest touch is sufficient to amount to an assault and it does not have to be a hostile or aggressive act or one that caused the complainant fear or pain.

The assault was indecent

Indecent means contrary to the ordinary standards of respectable people in the community, and it must have a sexual connotation or overtone.

The assault was committed without the complainant’s consent

Consent involves the conscious and voluntary permission by the complainant to the defendant to touch the complainant’s body in the manner that the defendant did.

Consent or the absence of consent can be communicated by the words or acts of the complainant.

The defendant knew the complainant was not consenting

The defendant must have known was not consenting. This is not a question of what a reasonable person would have realised, thought or believed, but what the defendant knew.

It is important to note that a person under the age of 16 cannot provide consent, and an indecent act will be regarded as an indecent assault in the absence of consent.